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GA: He was arrested for a sex act that’s no longer a crime. Years later, he remains convicted

[washingtonpost.com]

Charlton Green was 20 when he was arrested after having oral sex with a 16-year-old male in a Georgia hotel room.

He was convicted of a sex crime — not because the act was not consensual (it was), nor because the teen was not within the age of consent (in Georgia, it is 16). He was convicted because the incident happened in 1997, when oral and anal sex between consenting adults was prohibited under Georgia’s sodomy law. The conviction required him to register as a sex offender, a stigmatizing label that he carried for years.

Georgia’s Supreme Court invalidated the state’s sodomy law a year later, and the U.S. Supreme Court ruled against all such state laws in 2003, but Green’s legal status remains the same. Although his name was removed from the sex-offender registry in 2012, he remains convicted of sodomy and failure to register as a sex offender. Last week, the 11th U.S. Circuit Court of Appeals reversed a federal-district court’s ruling that would’ve thrown out those convictions.

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  1. New Person

    From the article:
    ==========
    On Friday, the 11th Circuit Court of Appeals reversed that ruling, saying the federal court lacked authority to entertain a challenge to Green’s sodomy conviction.
    ==========

    So, all it’s saying is the federal court lacked the authority, despite the unconstitutionality. Someone is playing hard ball so that only a higher court can “entertain a challenge”.

    This is akin to California’s 17(b)(3) felony reduction. My memory is a bit fuzzy, but in the late 1950s, Banks had his sentence imposed and subjected to probation. Upon completion of probation, he wanted to reduce his conviction from felony to misdemeanor. Usually, just before completion of probation, a judge would give a “misdemeanor” sentencing and that would render the final judgement a misdemeanor.

    But Banks completed his probation without reducing his conviction. So he appealed to get his 1203.4 and his 17(b). It his here that we discover that probation withholds final judgement. There is no final judgement if you successfully complete probation. The courts actually had no power to declare a felony a misdemeanor at the time, which is why the courts gave a “misdemeanor sentencing” prior to the completion of probation.

    Here is the conclusion of the opinion:
    =========
    We have noted the further contention for defendant that, since the Alameda County conviction (violation of the Vehicle Code) is in itself an essential and concurrent element of the San Diego County crime (possession of a revolver by a convicted felon), the San Diego prosecution should not be construed as being “for any other offense” within the meaning of the last sentence of Penal Code, section 1203.4. Since, as hereinabove related, defendant did not cause the probation procedures to be concluded as authorized by such section, we do not reach this last noted contention.

    We recognize that “conviction” has sometimes been given the meaning of a final judgment of conviction (see Truchon v. Toomey (1953), 116 Cal.App.2d 736, 738-745 [254 P.2d 638, 36 A.L.R.2d 1230]), but that meaning does not appear appropriate here. [22] Defendant relies on the familiar rule that “Where language which is reasonably susceptible of two constructions is used in a penal law, ordinarily that construction which is more favorable to the offender will be adopted.” (People v. Smith (1955), 44 Cal.2d 77, 79 [2] [279 P.2d 33].) But that rule will not be applied to change manifest, reasonable, legislative purpose (here, the purpose expressed by section 17 of the Penal Code) that an alternatively punishable offense remains a felony until pronouncement of misdemeanor sentence or, if imposition of sentence is suspended, the purpose expressed by section 1203.4 read with section 17 that the offense remains a felony until the statutory rehabilitation procedure has been had, at which time the defendant is restored “to his former status in society insofar as the state by legislation is able to do so, with one exception, namely, that … the record in the criminal case may be used against him for limited purposes in any criminal proceeding thereafter brought against him.” (Stephens v. Toomey (1959), supra, p. 871 of 51 Cal.2d.)
    =========

    There did not exist a 17(b)(3) before Banks. But because of Banks, 17(b)(3) was amended to the statute:
    =======
    (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.
    =======
    With the reading of Banks’ opinion and how 17(b)(3) is laid out, it seems automatic once you earn 1203.4 and there is no need for lengthy petition. Your successful completion of probation was your statutory rehabilitation procedure (or petition). But I digress…

    ..
    .
    So the GA courts are playing hard ball by stating the “federal courts lack the authority”. They’re prolonging the inevitable b/c the Constitution amended the wrong: his conviction isn’t a crime b/c it was ruled unconstitutional.

  2. R M

    Question: if in Powell v. State of Georgia, 1998, the decision overturned the state’s sodomy law, and in 2003, sodomy laws were overturned nationwide (Lawrence v. Texas), why does the 2016 Official Code of Georgia still have a sodomy law ( https://law.justia.com/codes/georgia/2016/title-16/chapter-6/section-16-6-2/ )?

    • CR

      The law remains on the books, but is unenforceable.

      It took South Carolina until 1998 and Alabama until 2000 to amend their states’ constitutions to remove language prohibiting miscegenation, despite the Supreme Court decision in Loving v Virginia 1967.

      Georgia, Texas, Louisiana, and probably a few others still have laws on the books that criminalize sodomy, despite the Supreme Court decision striking down such laws in Lawrence v Texas 2003.

      This is a common practice in conservative states where the legislature and executives wish to demonstrate their defiance of Supreme Court decisions that strike down their bigoted and hateful laws that are nearly always based on ultra-conservative religious beliefs.

    • AJ

      @R M:
      I second what CR says. I also think the legislators 1) are too lazy to spend time cleaning up the books of old/unconstitutional laws; 2) are afraid to repeal it and have it become a campaign issue; 3) like to leave things on the books so someone less-informed complies without being legally required to do so.

      That State statute or City ordinance staring you in the face is much stronger than some court ruling you may not know about or recall. It’s no different than the Halloween and residency laws ACSOL keeps having to sue over.

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